Adnan Syed v Ampol Limited T/A Ampol Retail Pty Ltd

[2021] FWC 774

[2021] FWC 774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adnan Syed
v
Ampol Limited T/A Ampol Retail Pty Ltd
(U2020/15348)

COMMISSIONER BISSETT MELBOURNE, 19 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] Mr Adnan Syed has made an application to the Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Syed says that he was unfairly dismissed from his employment with Ampol Limited T/A Ampol Retail Pty Ltd (Ampol).

[2] Mr Syed commenced working for Ampol on 24 July 2019 in its service station/retail store at Truganina. He worked on a permanent part time basis. On 28 September 2020 Mr Jaswanth Shriramshetty commenced as manager at the Truganina store, having commenced work with Ampol in June 2019.

[3] At the commencement of the hearing, having heard from the parties, I determined that the matter should proceed by way of hearing.

BACKGROUND

[4] The background and much of the factual matters in this application are not in dispute.

[5] In October 2020 Ampol had an instore promotion on “200% caramel Mars Bars” of 2 for $5. The in store promotion allowed the team member with the best sales in the promotion to be awarded a $200 prize.

[6] In October 2020 Mr Shriramshetty became aware that Mr Syed was doing exceptionally well in the promotion. He commented on this to another team member who said it was unusual that Mr Syed had such high promotional sales figures given the low customer traffic for the times of day he actually worked. Mr Shriramshetty looked into the sales achieved by Mr Syed and, on one shift, found that even though only 30 customers came in whilst Mr Syed was working he had sold 20 Mars Bars. Mr Shriramshetty though it unusual that so many people were buying chocolates.

[7] Mr Shriramshetty then went through CCTV footage and aligned this with sales by Mr Syed. On one of these he noticed a customer purchased a Bundaberg drink but the sale went through as a Mars Bar promotion sale. Mr Shriramshetty raised this with Mr Syed on 6 November 2020.

[8] Mr Shriramshetty said that following his discussion with Mr Syed in relation to the drink purchase he undertook a more detailed review of promotional sales made by Mr Syed. In doing so he found more discrepancies and incorrectly processed transactions by Mr Syed.

[9] Mr Shriramshetty emailed HR Advisory (the human resources group for Ampol) the spreadsheet he had created, the CCTV he had viewed and evidence in relation to incorrectly processed transactions. In total Mr Shriramshetty identified 28 instances of incorrect scanning (increased to 41 following further investigation after the dismissal of Mr Syed).

[10] On 12 November 2020 Mr Syed was stood down on full pay while an investigation took place into his conduct.

[11] On 13 November Mr Syed sent an email to HR Advisory which said:

Hi HR Advisory team.

Hope you all doing well.

I received an e‐mail by my Store manager Mr. Jashwanth (Jash) regarding on‐going investigation for breaching the company policy.

Below mentioned points will help to conduct fair and proper investigation.

1. On Friday 30/10/20, I have thrown plenty of shop items(expired) without processing wastage on POS system,as I just followed instructions of store Manager as he told me our Shop doing more wastage we need to cut down,so just chuck in bin, when I raised the concern of Stock take he said he would managed,in front of him I thrown plenty of expired drinks and chocolates without recording wastage

Evidence Reference: Camera footage, Friday 30/10/20 at 9am ‐10am.

2. I have been personally instructed by my store manager to increase sales promotion with scanning promo items to get top position in Victoria.

By doing this we got second and third position in Victoria, even customer refused to buy promo items, you must scanned promo items which is Mars bars on promo 2 for $5. It sounds really strange to me.

[errors in original]

[12] Ms Hannah Saville from HR Advisory responded to Mr Syed’s email on 13 November 2020 in which she said (in part):

I can confirm that there is an ongoing investigation into these concerns and you will shortly receive an email from Jash [Shriramshetty] outlining all of our concerns and asking you to attend a meeting to respond to these allegations.

During this meeting, you will be able to provide a response to Jash and Reddy about what happened. If you have any evidence that Jash asked you to scan the wrong item (e.g text message) then please bring it to the meeting to be considered, the text messages you have provided only show Jash praising you, they do not show he told you to incorrectly scan.

Reddy will also review the CCTV footage from 6 November 2020 prior to the meeting. Please note you are invited to bring a support person to the meeting.

[13] Mr Syed did not respond to Ms Saville’s email at that time, neither did he later provide evidence that he was asked by Mr Shriramshetty to incorrectly scan items.

[14] The allegations made by Mr Syed in his email were investigated by HR Advisory. As part of the investigation other team members in the Truganina store and Mr Shriramshetty were interviewed. No evidence was apparently found to support Mr Syed’s claims. In particular the “Food wastage report” for 30 October 2020 was properly completed, contrary to the claim of Mr Syed in his 13 November 2020 email.

[15] On 13 November 2020 Mr Syed was provided with a letter which set out the details of the allegations made against him. He was and invited to attend a meeting on 16 November 2020 in which he could respond to the allegations and show cause as to why his employment should not be terminated. Mr Syed was invited to bring a support person to the meeting.

[16] Mr Syed met with Business Manager Mr Reddy Soma and Mr Shriramshetty on 16 November 2020. The meeting commenced at 2.00pm and concluded at about 4.00pm. The meeting was conducted by Mr Soma and Mr Shriramshetty took notes. During the meeting Mr Syed was given an opportunity to explain each of the instances of incorrect transactions identified in the letter. In that meeting Mr Syed agreed that he had incorrectly scanned the identified transactions.

[17] Mr Syed explained to Mr Soma he was approached by Mr Shriramshetty on about 5 October 2020 who instructed his that he was to do a minimum of 10 promotions per shift. Mr Syed said that Mr Shriramshetty told him that if he did not do 10 promotions per shift it would affect his shifts and he might lose hours from his shifts.

[18] Mr Syed said that the incorrect scanning he did was in response to the direction he was given, he knew his actions were wrong, but he did not report it to HR Advisory or tell anyone else about it. He said he was scared he would lose hours of work. Further, Mr Syed said he did not anonymously report the direction he said he was given.

[19] Towards the end of the meeting Mr Soma called a break and contacted HR Advisory. In that discussion it was decided to terminate Mr Syed’s employment.

WAS MR SYED UNFAIRLY DISMISSED?

[20] It was not in contention and I am satisfied that Mr Syed is protected from unfair dismissal, his dismissal was not a redundancy and Ampol is not a small business. The application was also made within the required time period (s.396 of the FW Act).

[21] Further, there is no dispute that Mr Syed was dismissed (s.385 of the FW Act).

[22] It therefore falls to determine if the dismissal of Mr Syed was harsh, unjust or unreasonable.

WAS THE DISMISSAL HARSH, UNJUST OR UNREASONABLE?

[23] In order to determine if a dismissal was harsh, unjust or unreasonable it is necessary to consider those matters set out in s.387 of the FW Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

(a) was there a valid reason for dismissal

[24] The termination letter provided to Mr Syed on 16 November 2020 identified 28 instances over 7 days between 6 and 27 October 2020 when Mr Syed incorrectly scanned customer purchases as the “2 for $5 Mars Bar” promotion when the purchases were not, in fact, promotion purchases.

[25] Mr Syed agreed that he engaged in this conduct. Further, he agreed that it was more likely closer to 40 occasions that he did this as further identified by Mr Shriramshetty in his witness statement.

[26] Whilst agreeing that he engaged in the conduct that formed the basis of the termination of his employment, Mr Syed said that he incorrectly scanned the purchases as he was told to do so by Mr Shriramshetty. Mr Syed said that, Mr Shriramshetty took over as store manager in early October 2020. Mr Syed said that, at his first meeting with Mr Shriramshetty on 5 October 2020, he was “instructed and insisted verbally by the store manager to scan incorrect promotion items under the “2 for $5 Mars Bar deal”to boost the stores scan rate to achieve good ranking for the store in Victoria.” 1 He said that he was told that he must do 10 promotions per shift and that if he did not do so his shifts would be cut. Mr Syed said that he was afraid of having his shifts cut as he could not afford to lose work and income.

[27] Mr Syed agreed that he did not speak to anyone about the direction given to him. He did not mention it to any co-worker, did not tell HR Advisory and did not anonymously advise management about the direction.

[28] Mr Syed also said that on “30th October 2020 he [Mr Shriramshetty] also instructed me to throw the expired stock in a bin so I followed his instruction and throw the stock in a bin in his presence without processing wastage recording in the system which is also breaches the company policy.” Again, Mr Syed told no-one of this incident or direction until the email of 13 November 2020 to HR Advisory following his stand down. He said that Mr Shriramshetty told him he would manage any discrepancies.

[29] Mr Syed said that on 6 November 2020 Mr Shriramshetty directed him to undertake incorrect scanning for the November promotion but he refused to do so. Mr Syed said that Mr Shriramshetty got upset and angry and “behaved rudely” at this. He said that later Mr Shriramshetty took him into the back office and apologised to him for his behaviour. For this reason Mr Syed said he did not take the matter to HR Advisory.

[30] Mr Syed said that there was CCTV footage of the discussion he had with Mr Shriramshetty on 30 October 2020 (in relation to the disposal of expired stock) and 6 November 2020 (when he said he told Mr Shriramshetty he would not incorrectly scan the November promotion) but this was not kept by Ampol and it should have been.

[31] Mr Shriramshetty said that, in his conversation with Mr Syed on 5 October 2020 he encouraged Mr Syed to do his best in the promotions. Mr Shriramshetty said he spoke to all the team members about the promotion and tried to motivate them to do well. He said he discussed with the team members the cash prize available for doing well in the promotion although may not have mentioned the specific amount. He said he described how, in his previous store, staff used the prize money to have a shared dinner. Mr Shriramshetty specifically denied that he told Mr Syed he would cut his shifts if he did not do incorrect scanning. Mr Shriramshetty said that he cannot do that.

[32] Mr Shriramshetty said he was alerted to Mr Syed’s unusually high promotion sales by another team member in the store. He reviewed some CCTV footage of times when Mr Syed said he had sold the promotion. On one occasion he noticed that a customer purchased a Bundaberg drink but Mr Syed put this through as a Mars Bar promotion sale. Mr Shriramshetty sought to raise this with Mr Syed on 6 November 2020 to understand what had occurred. Mr Shriramshetty said Mr Syed got upset and argumentative and asked why it was not being raised through the Business Manager. Mr Shriramshetty said Mr Syed said he was going to raise it with HR and did not want to discuss it anymore. 2

[33] Mr Shriramshetty denied that in the discussion on 6 November 2020 he asked Mr Syed to incorrectly scan items for the November promotion.

[34] Given Mr Syed’s reaction to the purchase of the Bundaberg drink Mr Shriramshetty undertook further investigation and developed a spreadsheet in which he detailed the incorrect scanning and the cost of that to the store and the business. He subsequently provided this to HR Advisory. 3

[35] Mr Shriramshetty said that he did not direct Mr Syed to incorrectly dispose of expired stock or to not compete the wastage report on 30 October 2020 (or any other day).

[36] Ms Hannah Saville is a Human Resources Advisor with Ampol. She gave evidence that she became aware of Mr Syed’s conduct on 11 November 2020 when she received an email from Mr Shriramshetty with the details of the incorrect scanning undertaken by Mr Syed. She said the email contained details of scanning, corresponding CCTV still images and receipts of transactions.

[37] Ms Saville said that, as a result of this, Mr Syed was stood down on full pay on 12 November 2020 4 while the matter was investigated. On 13 November 2020 Mr Syed sent an email to HR Advisory in which he said Mr Shriramshetty had told him to dispose of expired stock incorrectly; Mr Shriramshetty had instructed him to incorrectly scan for the Mars Bar promotion; that on 6 November 2020 Mr Shriramshetty had been rude to him and that Mr Shriramshetty had pressured and threatened to take away his hours if he did not comply with the direction.

[38] Ms Saville said that she reviewed the wastage report for 30 October 2020 and found it to have been completed appropriately. 5 Further, she said there was no evidence to support the claim that Mr Shriramshetty had threatened Mr Syed or told him to incorrectly scan items. She also said that, under the terms of Mr Syed’s employment, his hours could not be reduced or varied without his agreement.

[39] I am satisfied, based on the evidence and the admission of Mr Syed, that he incorrectly scanned at least 28 purchases as part of the October promotion, and that it was more likely closer to 40 purchases, and that he did so knowing it was wrong. I am satisfied that his actions provide a valid reason for his dismissal.

[40] Even if Mr Syed was directed to incorrectly scan items (a proposition I reject and which I deal with further below) he admitted that he knew what he was doing was wrong but he proceeded to do so anyway.

[41] Mr Syed’s conduct was dishonest and it had a financial impact on the business. His conduct provided a sound, defensible and well founded reason for his dismissal.

(b) & (c) was Mr Syed notified of that reason for his dismissal ad given an opportunity to respond

[42] Mr Syed agreed that he received a show cause letter that detailed the matters under investigation by Ampol and was invited to a meeting on 16 November 2020 to respond to the allegations. Mr Syed said the meeting commenced at 2.00pm and went until about 4.00pm. He agreed that he was shown the still photographs taken from CCTV but says he was not shown or offered the opportunity to view the actual CCTV footage.

[43] Mr Syed said that Mr Shriramshetty took notes at the meeting, he was shown these and told he would be provided with a copy of them. Instead, he said he was sent a summary of the notes. Mr Syed said the notes were important and would show he was telling the truth.

[44] As a result of Mr Syed’s evidence and that of Mr Shriramshetty of the meeting of 16 November 2020 I called for the production of the notes of the meeting 6 and the email sent to Mr Syed with a summary of the meeting notes.7 These notes add no more to the evidence of Mr Syed.

[45] The meeting adjourned during which time Mr Soma – the Business Manager conducting the meeting – consulted with HR Advisory.

[46] Following the adjournment Mr Syed was advised that his employment would be terminated and the reasons for that decision.

[47] I would observe that, in the process of determining that Mr Syed’s employment should be terminated Mr Syed was not asked why this should not occur. The notes of the meeting 8 do not indicate that Mr Syed was told that on consideration of his responses the allegations against him were proven and that Ampol was considering terminating his employment. In this respect he was denied the opportunity to directly address Mr Soma on why his employment should not be terminated.

[48] Ultimately, given the conduct admitted to by Mr Syed, I am not convinced this would have affected the decision but Mr Syed was denied the opportunity to put any mitigating factors before Mr Soma.

(d) support person

[49] Mr Syed agreed that he was invited to bring a support person to the meeting of 16 November 2020.

(e) termination for performance reasons

[50] Mr Syed’s employment was not terminated for reasons relating to his performance. It is therefore not necessary to consider this matter.

(f) & (g) the size of the employer’s business and access to human resource expertise

[51] Ampol is not a small business. It has a HR Advisory group which provided advice and support to Mr Soma in relation to the ultimate decision made with respect to Mr Syed’s employment.

[52] Further, HR Advisory ensured that the allegations of Mr Syed in relation to Mr Shriramshetty were investigated.

[53] I am satisfied that there was access to human resources expertise.

(h) other matters

[54] Mr Syed said that he carried out the incorrect scanning on the instruction of Mr Shriramshetty, his store manager. Mr Shriramshetty denies that he gave such an instruction.

[55] Mr Shriramshetty presented as clear and considered in his evidence. I consider that Mr Shriramshetty’s version of the conversation he said he had with Mr Syed on 5 October 2020 when he sought to “motivate” team members and encourage them to improve sales of the promotion to be credible. I prefer his evidence as to the content of the discussion on 5 October 2020 to that of Mr Syed.

[56] Mr Shriramshetty’s version of the conversation he had with Mr Syed on 5 October 2020 is further supported by his evidence that there is no benefit to him in having items incorrectly scanned as he is responsible for proper stock reporting and the overall performance of the store. It is further reinforced by the evidence that no other team member at the Truganina store said they were asked to incorrectly scan items. No explanation was given as to why Mr Syed would be singled out for such an indiscretion.

[57] Mr Syed said that he gained no benefit from incorrectly scanning items as being part of the promotion so there was no reason for him to do so.

[58] In preferring the evidence of Mr Shriramshetty I have also considered Mr Syed’s claim that he was also told to incorrectly dispose of expired stock by Mr Shriramshetty on 3 October 2020. Ms Saville provided evidence, which I accept, that the expired stock report of 30 October 2020 was correctly completed – contrary to the evidence of Mr Syed. That Mr Syed was incorrect on this casts uncertainty over his evidence in relation to the direction he said he was given with respect to the promotion.

[59] Mr Syed said that the provision of the CCTV footage would support his version of the conversations he said he had with Mr Shriramshetty. Whilst I acknowledge that it would have been preferable that CCTV footage be retained, I accept that it does not contain any audio recording. I accept it would have shown Mr Syed and Mr Shriramshetty talking on both 30 October and 6 November 2020, but this is not a disputed fact. It would not, however, have provided evidence of the content of that discussion so would not have added any light to the disputed conversations.

[60] Mr Syed said that it was relevant that he had his hours of work threatened if he did not comply with the directions he said were given to him by Mr Shriramshetty. Mr Syed also agreed however that he was aware that his hours of work could not be changed without his agreement. He acknowledged that his hours of work had been varied in May 2020 only with his agreement. I accept the evidence of Mr Shriramshetty that he was aware he could not unilaterally vary the hours of work of a part time employee without that employee’s consent.

[61] Mr Syed said that, as a result of COVID-19 he lost his job at BP so that he only had his part-time salary at Ampol on which to support his family. Mr Syed said he worked at Ampol for 1 year and 4 months. In this respect he says his dismissal was harsh.

Was the dismissal harsh, unjust or unreasonable?

[62] Whilst I accept that the impact of the dismissal has been harsh on Mr Syed he engaged in conduct that struck at the core of his employment. He was employed as a team member in a service station/store. His job was to complete transactions for goods bought through the outlet. He deliberately and incorrectly scanned items as being purchases under a promotion when they weren’t. He knew what he was doing, he knew it was wrong and yet he continued to do so for a four week period. While, ultimately, the financial loss to the business may not be considered a substantial amount it was not the loss that caused his dismissal.

[63] By his conduct Mr Syed breached his obligation to Ampol to be trustworthy and act in good faith.

[64] I have taken into account the further instances of incorrect scanning of transactions found after the dismissal of Mr Syed and his acknowledgement that those instances are probably correct.

[65] Mr Syed could have reported his manager openly or anonymously; he could have spoken of the direction he claimed to have been given with other team members in his store. He did none of this. Instead he continued with the deception. The cost of doing so is the loss of his job but it is, in this case, justified.

[66] Further, I am not convinced the decision to dismiss Mr Syed was unreasonable.

[67] I accept that the loss of a job, particularly when the job is the only source of income for a family is, by its nature, harsh. This however must be balanced against the dishonesty shown by Mr Syed in his actions. Such balancing does not weigh in his favour.

[68] I have, in reaching my conclusion, considered the error in procedure used by Ampol in gathering Mr Syed’s responses to the allegations and giving him an opportunity to explain why his employment should not have been terminated. I have concluded that this would not have affected the end result. It is a step to correct in future by Ampol but not enough to render the dismissal harsh, unjust or unreasonable.

[69] For these reasons I am not satisfied that the decision to dismiss Mr Syed was harsh, unjust or unreasonable.

CONCLUSION

[70] For the reasons set out above I am not satisfied that Mr Syed was unfairly dismissed.

Mr Syed’s application for relief is therefore dismissed. An order 9 to this effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

A. Syed, on his own behalf.

V. Perry, for the Respondent.

Hearing details:

2021.
Melbourne.
12 February.

Printed by authority of the Commonwealth Government Printer

<PR726962>

 1   Exhibit A1, paragraph 1.

 2   Exhibit R2, paragraph 20.

 3   Exhibit R2, attachment JS-4. The updated spreadsheet is at attachment JS-5.

 4   Exhibit R1, attachment HS-3.

 5   Exhibit R2, paragraph 17(a) and attachment HS-5.

 6   Exhibit A2.

 7   Exhibit A3.

 8   Exhibit A2.

 9   PR726963